State of Washington v. Victor A. Valdovinos-Vazquez ( 2018 )

FILED
AUGUST 28, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 35147-5-III
) (consolidated with
Respondent, ) No. 35604-3-III)
)
v. )
)
VICTOR A. VALDOVINOS VAZQUEZ, ) UNPUBLISHED OPINION
)
Appellant. )
In the Matter of the Petition for Relief )
from Personal Restraint of: )
)
VICTOR VALDOVINOS VAZQUEZ. )
LAWRENCE-BERREY, C.J. — Victor Valdovinos Vazquez (Valdovinos) appeals the
trial court’s order denying his motion to vacate his guilty plea and conviction. He argues
he received ineffective assistance of counsel when his trial counsel did not correctly
advise him of the immigration consequences of his guilty plea. Here, trial counsel
advised him not to plead guilty until Valdovinos consulted with his retained immigration
No. 35147-5-III; No. 35604-3-III
State v. Valdovinos Vazquez; PRP of Valdovinos Vazquez
attorney. This was good advice. Valdovinos ignored it and pleaded guilty. Because his
trial counsel’s advice was not deficient, we reject Valdovinos’s claim and affirm the trial
court.
FACTS
Valdovinos did not assign error to any of the trial court’s findings of fact. We
therefore take our facts from those findings.
On August 1, 2016, the State filed a criminal information against Valdovinos,
alleging one count of residential burglary. Attorney Nicholas Yedinak appeared on behalf
of Valdovinos.
Valdovinos is not a United States citizen. He came to the United States when he
was in grade school, around 2005. Shortly after he was charged, Valdovinos’s family
retained attorney Brent De Young to provide their son with advice about the immigration
consequences of his criminal case and also to consult with Yedinak.
De Young telephoned Yedinak and said he was aware of an unfiled drug
possession case against Valdovinos. In the telephone call, De Young mentioned to
Yedinak his concerns about the immigration consequences of the drug possession case.
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On or shortly before September 1, 2016, the State made a plea offer to Valdovinos
through Yedinak. Yedinak e-mailed an outline of the plea offer to De Young. De Young
responded and offered specific immigration advice to Yedinak concerning the plea offer.
The parties set a change of plea hearing for September 6, 2016. That same day, the
State approached Yedinak and offered to resolve Valdovinos’s unfiled drug possession
case. The State offered to include the unfiled drug offense under the residential burglary
case and to request no additional jail time for that offense.
Yedinak did not call or discuss the new plea offer with De Young because the
offer came up at the last moment in court. The new plea offer required Valdovinos to
plead guilty to first degree theft, criminal trespass in the first degree, and possession of a
controlled substance, methamphetamine.
Yedinak discussed the new plea offer with Valdovinos. He advised Valdovinos to
consult with De Young about the immigration consequences of the new charge before
entering a plea of guilty. He specifically told Valdovinos that the new drug charge may
adversely affect his immigration status. Valdovinos decided against consulting with De
Young and decided to plead guilty to the amended charges.
A court interpreter assisted Valdovinos at the plea hearing. The record of the plea
hearing establishes that Valdovinos was advised of his constitutional rights and the
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consequences of pleading to the charges. The trial court asked Valdovinos whether he
wanted additional time to consult with his immigration attorney. Valdovinos declined.
The trial court also asked Valdovinos if he was aware that pleading guilty might lead to
his deportation. Valdovinos answered, “‘yes.’” Clerk’s Papers (CP) at 190. Valdovinos
then pleaded guilty to the amended charges, and the trial court accepted his plea.
Just over two months later, Valdovinos filed a motion to withdraw his guilty plea
and conviction. The trial court held a hearing, heard testimony, and reviewed the
declarations pertaining to the motion. The trial court subsequently issued a memorandum
opinion denying Valdovinos’s motion. The memorandum opinion carefully sets forth the
facts found by the trial court and its legal analysis. The trial court later signed findings of
fact and conclusions of law. In its findings of fact, the trial court adopted its findings in
its memorandum opinion.
Valdovinos appealed.
ANALYSIS
Valdovinos claims he received ineffective assistance of counsel when his trial
counsel did not advise him that pleading guilty to the drug felony would lead to
deportation.
Ineffective assistance of counsel
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The Sixth Amendment to the United States Constitution right to effective
assistance of counsel encompasses the plea process. State v. Sandoval, 171 Wn.2d 163,
169, 249 P.3d 1015 (2011). Defense counsel’s erroneous advice can render the
defendant’s guilty plea involuntary or unintelligent. Id. To establish that the plea was
involuntary or unintelligent, the defendant must satisfy the two-part test for ineffective
assistance of counsel established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984). Sandoval, 171 Wn.2d at 169.
To establish ineffective assistance of counsel, the defendant must show deficient
performance and that the deficient performance prejudiced the defendant. In re Pers.
Restraint of Crace, 174 Wn.2d 835, 840, 280 P.3d 1102 (2012). To prove deficient
performance, the defendant must show that the representation fell below an objective
standard of reasonableness. Id. at 842. To show prejudice, the defendant must show a
reasonable probability that, absent the error, the result would have been different. Id. In
analyzing such a claim, the appellate court starts with a presumption that counsel’s
representation was effective. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251(1995). Competency of counsel is determined based on the entire record below. Id.With regard to immigration consequences, if the applicable immigration law is
truly clear that an offense is deportable, the defense attorney must advise the defendant
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that pleading guilty will lead to deportation. Sandoval, 171 Wn.2d at 170 (citing Padilla
v. Kentucky, 559 U.S. 356, 369, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010)). If the
potential for deportation is not clear, then defense counsel must provide a general
warning that a guilty plea may carry the risk of adverse immigration consequences. Id.Padilla provides an example when the immigration consequences are truly clear.
Sandoval, 171 Wn.2d at 171. There, Jose Padilla pleaded guilty to transporting a
significant amount of marijuana in his truck, an offense that was deportable under
8 U.S.C. § 1227(a)(2)(B)(i):
“Any alien who at any time after admission has been convicted of a
violation of (or a conspiracy or attempt to violate) any law or regulation . . .
relating to a controlled substance . . . , other than a single offense involving
possession for one’s own use of 30 grams or less of marijuana, is
deportable.”
Sandoval, 171 Wn.2d at 171 (alterations in original) (quoting Padilla, 559 U.S. at 368).
In Padilla, the United States Supreme Court held that simply reading the text of the
statute would have alerted Mr. Padilla’s counsel that a guilty plea would render Mr.
Padilla eligible for removal. 559 U.S. at 368.
Padilla involves the typical case where defense counsel does not know the
immigration consequence of a plea but nevertheless proceeds forward without adequately
warning the client. This is not the typical case. Here, the State’s late amendment of
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State v. Valdovinos Vazquez; PRP of Valdovinos Vazquez
charges at the plea hearing deprived defense counsel of the typical ability to determine the
immigration consequence of the plea. For this reason, defense counsel advised his client
to consult with his retained immigration attorney before pleading guilty. This was good
advice. Valdovinos rejected this good advice and pleaded guilty. Good advice is not
rendered deficient simply because the client rejects it.
By declaration filed in the trial court, Valdovinos claimed he pleaded guilty
because he thought De Young had already approved the plea for immigration
consequences. The trial court found this claim unbelievable:
It was Mr. Yedinak’s impression that the defendant wanted to get the case
over that day. . . . The Court discounts defendant’s self-serving declaration
in light of the weight of the evidence presented in Mr. Yedinak’s written
declaration and testimony. Furthermore, the court is mindful that during the
trial court’s colloquy with defendant during the plea hearing the court gave
defendant an opportunity to speak with his immigration attorney prior to
pleading, and warned defendant of the potential adverse immigration
consequences of pleading guilty. Even with the trial court’s additional
warnings the defendant still wished to go forward with the plea.
CP at 191.
Because Valdovinos cannot establish that his trial counsel performed deficiently,
we conclude he did not receive ineffective assistance of counsel.
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Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
I CONCUR:
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No. 35147-5-III
(consolidated with
No. 35604-3-III
FEARING, J. (concurring)- I agree with the majority's ruling to affirm the trial
court's denial of Victor Valdovinos Vazquez's motion to vacate his guilty plea to three
charges in Douglas County Superior Court. 1 would, however, rest the affirmation on the
lack of prejudice prong rather than the negligent performance of counsel prong of the
ineffective assistance of counsel analysis. Valdovinos Vazquez's plea counsel should
have known that a guilty plea to possession of methamphetamine merited deportation and
should have warned Valdovinos Vazquez that pleading guilty would lead to certain
deportation or near certain deportation. Nevertheless, the facts show that Valdovinos
Vazquez would have pied guilty even if plea counsel properly advised him. Therefore, I
concur with a separate opinion.
PROCEDURAL BACKGROUND
I add some details to the majority's factual recitation. Victor Valdovinos Vazquez
is not a United States citizen. He entered the United States as a child in 2005. Shortly
after the filing of the original information on August 1, 2016, Valdovinos Vazquez's
family retained attorney Brent De Young to provide immigration advice to Valdovinos
No. 35147-5-III; No. 35604-3-III
State v. Valdovinos Vazquez; PRP of Valdovinos Vazquez - concurring
Vazquez. We do not know the full extent of Valdovinos Vazquez's family, where the
family resides, or family members' respective immigration status.
Neither party provided this court the background to the criminal charges or cited
to the record any information underlying the· charges. In a declaration in support of the
motion to vacate the guilty plea, Brent De Young averred that he questioned the validity
of a search or seizure after reviewing police reports. The record does not enlighten us
regarding the nature of the concerns.
At the time of the plea hearing, Victor Valdovinos Vazquez was subject to an
immigration hold, whereby state authorities detain an undocumented immigrant already
in jail for transfer to the United States Immigration and Custom Enforcement. During the
plea hearing, when the State presented Valdovinos Vazquez an offer to resolve all
charges, including the untiled charge of possession of a controlled substance, Valdovinos
Vazquez's plea counsel, Nicholas Yedinak, advised Valdovinos Vazquez to delay the
plea one week so that plea counsel, Valdovinos Vazquez, or both could discuss the new
offer with immigration counsel, Brent De Young. Plea counsel knew that the new drug
possession charge may have adverse immigration consequences based on his recent
discussion with De Young. Plea counsel warned Valdovinos Vazquez that a plea to the
drug charge could have negative immigration consequences. Counsel did not expressly
tell Valdovinos Vazquez that he "would" be deported if he pled to a drug possession
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offense. Counsel concluded that Valdovinos Vazquez wanted to resolve the state
prosecutions that day.
In a declaration in support of his motion to vacate the guilty plea, Victor
Valdovinos Vazquez averred that plea counsel failed to inform him that his plea, during
the plea hearing, entailed additional charges beyond criminal trespass. He also declared
that someone told him that plea counsel e-mailed Brent De Young a copy of the plea
agreement. Valdovinos Vazquez did not disclose the identity of the someone. According
to Valdovinos Vazquez, his sister informed him that immigration lawyer Brent De Young
advised that the plea agreement did not contain any deportable convictions. Therefore,
Valdovinos Vazquez concluded "it was safe for [him] to plead guilty." Clerk's Papers
(CP) at 62. Valdovinos Vazquez's declaration fails to note, however, whether he
believed that Brent De Young received the revised plea agreement or only the initial plea
agreement. The trial court entered findings, under which the court rejected these
averments of Valdovinos Vazquez.
Before entering his plea of guilty to the charges of first degree theft, criminal
trespass in the first degree, and possession of a controlled substance, methamphetamine,
Victor Valdovinos Vazquez signed a document titled notice regarding immigration
consequences. The notice read, in part:
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You are not required to disclose your immigration or citizenship
status to the court. But if you are not a citizen of the United States you
should tell your lawyer, even if you do not have legal immigration status to
be here, because you have the right to receive advice from your lawyer
about the specific consequences and risks that your case may have on your
immigration status. Depending on the facts of your case, a plea of guilty or
a conviction at trial can result in your deportation and may have other
negative immigration consequences, such as preventing you from gaining
citizenship or lawful status to remain in the United States. In some cases, if
you are convicted, detention and deportation will be required. Defense
counsel must advise a non-citizen client of adverse immigration
consequences. You are not entitled to an immigration lawyer at public
expense.
CP at 29.
In support of his motion to vacate the guilty plea, Victor Valdovinos Vazquez
declared:
This was a mistake that I pleaded to these charges. I want the court
to vacate my conviction so I can solve my case so that I won't be
automatically deported.
CP at 3 8. Valdovinos Vazquez does not expressly testify that he did not know that he
would be deported or, if he had known, he would not have pled guilty to the three
charges.
IMMIGRATION LAW
I begin with an account of immigration law. United States authorities can deport
any immigrant, including those with green cards, if he or she violates federal
immigration laws. The most common reason for removal is evidence of the
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commission of a crime. Under current federal immigration law, the drastic measure of
deportation is now virtually inevitable for a vast number of noncitizens convicted of
cnmes. Padilla v. Kentucky, 559 U.S. 356, 360, 130 S. Ct. 1473, 176 L. Ed. 2d 284(2010).
Authorities can deport an immigrant who commits either a "crime of moral
turpitude" under certain conditions, an ''aggravated felony," or other designated
crimes. 8 U.S.C. § 1227(2). The specially designated crimes include illegal firearms
possession or sales, espionage, domestic violence, stalking, child abuse or neglect,
human trafficking, terrorist activity, and, critical for purposes of this appeal, drug
crimes, including possession of any controlled substance other than marijuana of
thirty grams or less. 8 U.S.C. § 1227(a)(2)(B). 8 U.S.C. § 1227(a)(2)(B)(i) declares:
Any alien who at any time after admission has been convicted of a
violation of (or a conspiracy or attempt to violate) any law or regulation
... relating to a controlled substance ... , other than a single offense
involving possession for one's own use of 30 grams or less of marijuana, is
deportable.
By listing a series of crimes separately, the law ensures that immigrants cannot
attempt to defend against deportation by arguing about whether or not the conviction
counts as a crime of moral turpitude or aggravated felony.
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ATTORNEY DEFICIENT PERFORMANCE
RCW 10.40.200, adopted in 1983, demands that accused noncitizens be warned of
possible immigration consequences of a guilty plea. That statute reads, in pertinent part:
(2) Prior to acceptance of a plea of guilty to any offense punishable
as a crime under state law, except offenses designated as infractions under
state law, the court shall determine that the defendant has been advised of
the following potential consequences of conviction for a defendant who is
not a citizen of the United States: Deportation, exclusion from admission to
the United States, or denial of naturalization pursuant to the laws of the
United States .... If ... the defendant has not been advised as required by
this section and the defendant shows that conviction of the offense to which
the defendant pleaded guilty may have the consequences for the defendant
of deportation, exclusion from admission to the United States, or denial of
naturalization pursuant to the laws of the United States, the court, on
defendant's motion, shall vacate the judgment and permit the defendant to
withdraw the plea of guilty and enter a plea of not guilty ....
(Emphasis added.) Victor Valdovinos Vazquez's plea counsel and the trial court warned
him of the potential consequences of pleading guilty to drug possession. Neither,
however, told Valdovinos Vazquez that the government would automatically,
presumptively, or practically inevitably deport him. To argue that the failure to receive
this additional or unequivocal warning voided his guilty plea, Valdovinos Vazquez relies
on constitutional principles.
Victor Valdovinos Vazquez asks this court to direct the vacation of his guilty plea
on the ground that plea counsel provided him constitutionally ineffective assistance of
counsel. In this appeal, Valdovinos Vazquez does not contend that counsel should have
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refused to proceed with the entry of the plea or insisted on a continuance of the plea
hearing. Valdovinos Vazquez contends that plea counsel should have warned him that a
plea of guilty to the drug charge would have led to deportation or plea counsel should
have telephoned immigration counsel before entry of the plea. Valdovinos Vazquez does
not maintain that plea counsel should have provided further immigration advice such as
the consequences of the plea on an ability to return to the United States after deportation.
The Sixth Amendment to the United States Constitution and article I, section 22 of
the Washington Constitution guarantee an accused the right to the assistance of counsel.
The right to counsel guaranteed in article I, section 22 of the Washington Constitution
provides the same protection as the Sixth Amendment. State v. Medlock, 86 Wn. App.
89, 99, 935 P.2d 693 (1997).
To establish ineffective assistance of counsel, a defendant must satisfy a two-part
test (1) that his or her counsel's assistance was objectively unreasonable and (2) that, as a
result of counsel's deficient assistance, he or she suffered prejudice. Strickland v.
Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To
demonstrate the first prong, deficient performance, a reviewing court adjudges the
reasonableness of counsel's challenged conduct on the facts of the particular case, viewed
as of the time of counsel's conduct. Strickland v. Washington, 466 U.S. at 690. This
court gives great deference to trial counsel's performance and begins the analysis with a
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strong presumption of effective counsel. Sta.le v. West, 185 Wn. App. 625, 63 8, 344 P .3d
1233 (2015). Deficient performance falls below an objective standard of reasonableness
based on consideration of all the circumstances. State v. McFarland, 127 Wn.2d 322,
334-35, 899 P.2d 1251 (1995). The accused bears the burden to prove ineffective
assistance of counsel. State v. McFarland, !'27 Wn.2d at 335.
Courts cannot exhaustively define the obligations of counsel or form a checklist
for judicial evaluation of attorney performance. Strickland v. Washington, 466 U.S. at
688 (1984 ). Nevertheless, effective representation entails certain basic duties, such as the
overarching duty to advocate the defendant's cause. Strickland v. Washington, 466 U.S.
at 688; In re Personal Restraint of Yung-Cheng Tsai, 183 Wn.2d 91,100,351 P.3d 138(2015). Effective representation extends to all critical stages in the proceedings,
including the plea process. Hill v. Lockhart,474 U.S. 52, 58, 106 S. Ct. 366, 88 L. Ed.
2d 203 (1985). Reasonable conduct for an attorney includes researching the law. State v.
Kyllo, 166 Wn.2d 856, 862, 215 P .3d 177 (2009). A defense attorney has a basic duty to
know and apply relevant statutes. In re Personal Restraint of Yung-Cheng Tsai, 183
Wn.2d at 101-02. An attorney's ignorance of a point of law fundamental to his or her
client's case combined with his failure to perform basic research on that point poses as a
quintessential example of unreasonable performance. Hinton v. Alabama, 571 U.S. 263,
274, 134 S. Ct. 1081, 188 L. Ed. 2d 1 (2014)_.
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The leading American decision on effective assistance of counsel in the context of
immigration law is Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284(2010). The decision compels a conclusion that plea counsel should have known that a
plea to a methamphetamine possession charge would lead to mandatory deportation of
Victor Valdovinos Vazquez. Counsel should have told Valdovinos Vazquez that
pleading guilty to the charge would lead to deportation rather than simply warning
Valdovinos Vazquez that his plea "could have" immigration consequences.
In Padilla v. Kentucky, the Supreme Court explained that, because of deportation's
"close connection" to the criminal process, advice about deportation consequences falls
within "the ambit of the Sixth Amendment right to counsel." Padilla v. Kentucky, 559
U.S. at 366. Padilla states that because "[i]mmigration law can be complex," the precise
advice required depends on the clarity of the law. Padilla v. Kentucky, 559 U.S. at 369.
If the applicable immigration law "is truly clear" that an offense is deportable, defense
counsel must correctly advise the defendant that pleading guilty to that particular charge
would lead to deportation. Padilla v. Kentucky, 559 U.S. at 369. If "the law is not
succinct and straightforward," counsel must provide only a general warning that "pending
criminal charges may carry a risk of adverse immigration consequences." Padilla v.
Kentucky, 559 U.S. at 369.
Padilla v. Kentucky explicitly rejected the proposition that only affirmative
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misadvice about deportation consequences of the plea, and not failure to give such
advice, could constitute ineffective assistance of counsel. Padilla also emphasized that
for "at least the past 15 years, professional norms have generally imposed an obligation
on counsel to provide advice on the deportation consequences of a client's plea." Padilla
v. Kentucky, 559 U.S. at 372.
In Padilla v. Kentucky, the defendant pled guilty to transporting a significant
amount of marijuana in his truck, an obviously deportable offense under 8 U.S.C.
§ 1227(a)(2)(B)(i), the statute at issue in Victor Valdovinos Vazquez's deportation. To
repeat, the statute intones:
Any alien who at any time after admission has been convicted of a
violation of (or a conspiracy or attempt to violate) any law or regulation
... relating to a controlled substance ... , other than a single offense
involving possession for one's own use of 30 grams or less of marijuana, is
deportable.
The nation's high court deemed this statute "succinct, clear, and explicit in defining the
removal consequence for Padilla's conviction." Padilla v. Kentucky, 559 U.S. at 368. By
simply "reading the text of the statute," Padilla's lawyer could have determined that a
plea of guilty would render Padilla eligible for removal. Padilla v. Kentucky, 559 U.S. at
368. Counsel was thus ineffective for misadvising Jose Padilla that he need not worry
about immigration status because of his lengthy stay in the country. Padilla v. Kentucky,
559 U.S. at 359, 368-69.
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Sound reason requires criminal defense counsel to maintain a general knowledge
of immigration law. The Washington Supreme Court recognizes:
[T]he deportation consequence of his guilty plea is also "a
particularly severe 'penalty.'" For criminal defendants, deportation no less
than prison can mean "banishment or'exile," and "separation from their
families."
State v. Sandoval, 171 Wn.2d 163, 175-76, 249 P.3d 1015 (2011) (internal citations
omitted).
By the time of Victor Valdovinos Vazquez's plea in 2016, all criminal defense
attorneys throughout the United States, particularly in agricultural regions such as
Douglas County, should have read and been acquainted with the rules announced in
Padilla v. Kentucky. All criminal defense attorneys should have read and been
acquainted with the principal statute addressed in Padilla: 8 U.S.C. § 1227(a)(2)(B)(i).
By reading the case and statute, Valdovinos Vazquez's plea counsel should have advised
Valdovinos Vazquez that his plea of guilty to possession of methamphetamine would
definitely lead to deportation. Valdovinos Vazquez needed no immigration law specialist
to advise him of the consequences of pleading guilty to possession of a controlled
substance. The law lacked any subtlety on this question.
Although Padilla v. Kentucky involved transportation of a controlled substance,
rather than possession of a controlled substance, under immigration law, this distinction
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lacks a difference. Although Padilla also involved affirmative misadvice by plea
counsel, anyone reading Padilla and 8 U.S.C. § 1227 would know to warn the client of
mandatory deportation for the crime of possession of methamphetamine. Such
knowledge did not require a criminal defense attorney to become an immigration law
specialist.
The State argues that plea counsel met his obligation to effectively represent
Victor Valdovinos Vazquez by advising him to delay the plea one week in order to
discuss the new plea agreement with immigration counsel, Brent De Young. I disagree.
All criminal defense counsel should readily know that a noncitizen accused will be
deported on pleading guilty to a methamphetamine possession charge. Plea counsel is
not entitled to the excuse of telling his client to delay proceedings to speak with an
immigration attorney.
The majority holds that plea counsel's advice to postpone the plea hearing
constituted effective counsel. I agree that this recommendation, in isolation, did not
violate the attorney's standard of care. But the holding fails to recognize that counsel
uttered the guidance for the purpose of Victor Valdovinos Vazquez conferring with
immigration counsel. In addition to recommending a one-week continuance, plea
counsel should have told Valdovinos Vazquez that his plea would lead to virtual
deportation.
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Admittedly immigration is a complicated area of the law and a niche specialty for
attorneys. Zhang v. United States, 543 F. Supp. 2d 175, 184 (E.D.N.Y. 2008).
Immigration law could be complex and situations could arise when the deportation
consequences of a particular plea are uncertain or unclear. Padilla v. Kentucky, 559 U.S.
at 369-74. But determining that a noncitizen client will be deported if he pleas to a drug
offense is not complicated.
Washington's Defender Association has free resources regarding the immigration
consequences of various Washington convictions. One may find numerous practice
advisories available on its web site, including one regarding drug possession offenses.
(Resources: Drug Possession Practice Advisory, WASH. DEFENDER Ass'N,
https://defensenet.org/resources/drug-possession-practice-advisory/ (rev. Nov. 26, 2013)).
The advisory warns that "[a] conviction for violation of ... any law or regulation ...
relating to a controlled substance (CS), including attempt and conspiracy to possess, will
trigger grounds for deportation and inadmissibility."
Four decisions support my conclusion. In People v. Guzman-Ruiz, 2014 IL App
(3d) 120150, 379 Ill. Dec. 478, 6 N.E.3d 806, Jovita Guzman-Ruiz pled guilty to
unlawful possession of cannabis with intent to deliver. After her deportation, she sought
vacation of her guilty plea because her plea attorney commented about the uncertainty of
deportation. The Illinois Court of Appeals held that counsel performed ineffectively.
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The court observed that, under 8 U.S.C. § 1227(a)(2)(B)(i), anyone convicted of a
violation of law relating to a controlled substance, other than possession of thirty grams
or less of marijuana for one's own use, is deportable. Even if defense counsel had not
researched the statute, he, as someone with many immigrant clients, should have been
familiar with Padilla v. Kentucky.
Commonwealth v. Henry, 88 Mass. App. Ct. 446, 38 N.E.3d 312 (2015), also
supports my conclusion. The state court convicted Liston Henry, a lawful permanent
resident of the United States, of violation of an abuse prevention order and witness
intimidation. Henry's plea counsel did not remember what immigration advice he
provided Henry, but counsel stated that, whenever he suspected potential immigration
consequences, he would recommend to the client to communicate with an immigration
attorney. The Massachusetts court held counsel's advice to be defective because counsel
could easily read 8 U.S.C. § 1227 and determine that the convictions rendered Henry
eligible for deportation. The receipt of written warnings that the conviction might bear
immigration consequences and advice to consult an immigration attorney fell short. The
court wrote:
"[C]ounsel therefore was obligated to provide his client, in language
that the client could comprehend, the information that presumptively
mandatory deportation would have been the legal consequence of pleading
guilty. Stated differently, counsel needed to convey that, if Federal
14
No. 35147-5-111; No. 35604-3-111
State v. Valdovinos Vazquez; PRP of Valdovinos Vazquez - concurring
authorities apprehended the defendant, deportation would be practically
inevitable."
Commonwealth v. Henry, 38 N.E.3d at 319 (quoting Commonwealth v. DeJesus, 468
Mass. 174, 9 N.E.3d 789, 795 (2014)).
Ex Parte Torres, 483 S.W.3d 35 (Tex., Crim. App. 2016) also bolsters my
conclusion. Defense counsel told defendant's brother that the family should hire an
immigration lawyer because the public defender's office only handles criminal charges.
Plea counsel nonetheless warned the brother that the charges could lead to deportation of
the defendant. Counsel later acknowledged that he had never independently reviewed the
Immigration and Nationality Act, but that he attended a seminar on the subject. The
reviewing court agreed with the lower court that counsel performed ineffectively by
failing to warn of presumptive mandatory deportation. Manuel Torres pied guilty to
possession of cocaine and robbery. Because of the nature of the convictions, counsel
held an obligation to inform Torres that deportation was a virtual certainty.
In State v. Gallegos-Delgado, 2017-NMCA-031, 392 P.3d 200, the New Mexico
Court of Appeals held that plea counsel failed to properly advise her client of mandatory
deportation upon pleading guilty to possession of cocaine. According to New Mexico's
extension of Padilla v. Kentucky dogma, defense attorneys must advise their clients if
15
No. 35147-5-III; No. 35604-3-III
State v. Valdovinos Vazquez; PRP of Valdovinos Vazquez - concurring
they will be deported and conduct an indivi~ualized analysis of the apparent immigration
consequences.
I note that some federal and foreign decisions hold that criminal defense counsel
adequately represented a noncitizen accused when advising the client to seek immigration
counsel before pleading to a criminal charge. Chhabra v. United States, 720 F .3d 395,
407-08 (2d Cir. 2013); Zhang v. United States, 543 F. Supp. 2d at 183-84 (E.D.N.Y.
2008); People v. Carranza-Lamas, 2015 IL App (2d) 140862, 395 Ill. Dec. 367, 38
N.E.3d 553, 563-65; Fuentes v. Clarke, 290 Va. 432, 438-39, 777 S.E.2d 550 (2015).
These decisions conflict with the teaching of Padilla v. Kentucky.
One might argue that Victor Valdovino Vazquez must provide an opinion from a
licensed attorney that plea counsel violated the standard of care when failing to tell him
that he would be deported. Although Valdovinos Vazquez's immigration counsel
afforded the superior court a declaration, counsel does not expressly opine that plea
counsel violated the standard of care. Although expert testimony might help, the law
does not require such testimony in all ineffective assistance of counsel claims. Jose
Padilla, in Padilla v. Kentucky, did not present an expert opinion that his counsel violated
the standard of care.
Victor Valdovinos Vazquez's trial court found that plea counsel performed
adequately. I must accept the underlying facts as found by the trial court as verities,
16
No. 35147-5-III; No. 35604-3-III
State v. Valdovinos Vazquez; PRP of Valdovinos Vazquez - concurring
particularly since Valdovinos Vazquez assigns no error to the findings. State v. Stenson,
132 Wn.2d 668, 697, 940 P.2d 1239 (1997) .. Nevertheless, the performance and
prejudice components of the ineffectiveness inquiry are mixed questions of law and fact.
Strickland v. Washington, 466 U.S. at 687 (1984). I must review anew the legal
consequences of those facts. The ruling as to whether the advice given was inadequate is
a legal conclusion not entitled to deference on appellate review. Chhabra v. United
States, 720 F.3d at 406-07; Fuentes v. Clarke, 290 Va. at 439.
PREJUDICE
Because I conclude that plea counsel failed to comply with constitutional
standards of effective representation, I must determine whether Victor Valdovinos
Vazquez fulfills the second prong of the ineffective assistance of counsel test. A
defendant establishes prejudice under Strickland v. Washington by showing that, but for
counsel's alleged deficiency, he would not have pled guilty and would have insisted on
going to trial. Hill v. Lockhart, 474 U.S. at 59 (1985); State v. Sandoval, 171 Wn.2d at
174-75 (2011).
Even if the defendant went to trial, a jury could still find the defendant guilty of
the crime such that the defendant would become subject to mandatory deportation
anyway. Therefore, the State might argue that the accused suffers no prejudice by
ineffective advice if the State bears overwhelming evidence of guilt. In settings other
17
No. 35147-5-111; No. 35604-3-111
State v. Valdovinos Vazquez; PRP of Valdovinos Vazquez - concurring
than pleas, the determination whether counsel's error "prejudiced" the defendant depends
largely on whether the defendant would have succeeded at trial. Evans v. Meyer, 742
F.2d 371, 375 (7th Cir. 1984).
In the context of guilty pleas, most courts require that the defendant convince the
court that a decision to reject the plea bargain would have been rational under the
circumstances. Padilla v. Kentucky, 559 U.S. at 372 (2010); Ex Parte Torres, 483
S.W.3d at 47-48 {Tex. Crim. App. 2016); People v. Guzman, 2014 IL App (3d) 090464,
388 Ill. Dec. 551, 24 N.E.3d 831,839. A Massachusetts court held that the defendant
may establish that such a choice would have been rational under the circumstances by
showing that ( 1) he or she pad an available, substantial ground of defense that would
have been pursued if he or she had been correctly advised of the dire immigration
consequences attendant to accepting the plea bargain, (2) there is a reasonable probability
that a different plea bargain absent such consequences could have been negotiated at the
time, or (3) the presence of special circumstances that support the conclusion that he
placed, or would have placed, particular emphasis on immigration consequences in
deciding whether to plead guilty. Commonwealth v. Cano, 87 Mass. App. Ct. 238,247,
28 N.E.3d 491 (2015). Special circumstances could be medical difficulties or a mental
disability that demands assistance from family members inside the United States.
18
No. 35147-5-III; No. 35604-3-III
State v. Valdovinos Vazquez; PRP of Valdovinos Vazquez - concurring
Commonwealth v. Cano, 87 Mass. App. Ct. 238; People v. Sifuentes, 2017 COA 48M,
410 P.3d 730.
A Texas court ruled that factors to consider when analyzing whether rejecting a
plea offer to be rational include the evidence supporting the defendant's assertions, the
likelihood of success at trial, the risks the applicant would have faced at trial, the benefits
received from the plea bargain, and the trial court's admonishments regarding possible
deportation. Ex Parte Torres, 483 S.W.3d at 48 (Tex. Crim. App. 2016). An Illinois
court ruled that the defendant must also either assert a claim of actual innocence or
articulate a plausible defense that could have been raised at trial. People v. Carranza-
Lamas, 38 N.E.3d at 561. To the contrary, one federal circuit held that defendant need
prove only that the decision to go to trial was rational, not that he would have likely
prevailed at trial. United States v. Orocio, 645 F.3d 630, 643 (3d Cir. 2011).
Unlike the law on the immigration consequences to pleading guilty of a controlled
substance offense, Washington's law on whether an accused must show that a decision to
go to trial would be rational is unclear. In State v. Martinez, 161 Wn. App. 436, 443, 253
P .3d 445 (2011 ), this court held that the accused need not show that going to trial would
be rational. The Martinez court cited State v. Sandoval, 171 Wn.2d 163 (2011 ), for this
proposition. But Martinez is written as if its author never read Sandoval. Sandoval does
not support this position, but instead our Supreme Court wrote in Sandoval that:
19
No. 35147-5-111; No. 35604-3-111
State v. Valdovinos Vazquez; PRP of Valdovinos Vazquez - concurring
"[A] defendant challenging a guilty plea must show that there is a
reasonable probability that, but for counsel's errors, he would not have
pleaded guilty and would have insisted on going to trial." A "reasonable
probability" exists if the defendant "convince[ s] the court that a decision to
reject the plea bargain would have been rational under the circumstances."
This standard of proof is "somewhat lower" than the common
"preponderance of the evidence" standard.
State v. Sandoval, 171 Wn.2d at 174-75 (second alteration in original) (internal citations
omitted). Thus, according to the higher court, rationality remains a factor.
Victor Valdovinos Vazquez contends on appeal that as long as he writes in his
brief that he would have not accepted the plea, had he known of the immigration
consequences, he shows prejudice. He cites for support of this argument: State v.
Sandoval, 171 Wn.2d 163 (2011) and State v. Martinez, 161 Wn. App. 436 (2011 ).
This court's decision in State v. Martinez reads as Victor Valdovinos Vazquez
claims it reads. State v. Sandoval does not. This court wrote in Martinez:
In Sandoval, the court found prejudice where Mr. Sandoval stated in
his brief that he would not have accepted the plea and counsel admitted Mr.
Sandoval "was 'very concerned'" about the risk of deportation. The
Sandoval court found this to be sufficient, even though it was not "rational"
that Mr. Sandoval would proceed to trial instead of accepting a plea deal
given the disparity in punishment (if Mr. Sandoval were convicted of
second degree rape, he faced a standard sentencing range of 78-102
months' imprisonment versus his plea to third degree rape, which subjected
him to just 6-12 months).
State v. Martinez, 161 Wn. App. at 442 (internal citation omitted).
No. 35147-5-111; No. 35604-3-111
State v. Valdovinos Vazquez; PRP of Valdovinos Vazquez - concurring
State v. Sandoval does not read as this court claimed in State v. Martinez. Instead,
the Washington Supreme Court observed that Valentin Sandoval swore that he would
have rejected the plea offer had he known the deportation consequence. Furthermore,
Sandoval's counsel testified that Sandoval was "very concerned" at the time of the plea
of the risk of deportation and Sandoval told counsel he did not wish to plea if the plea
would lead to deportation. State v. Sandoval, 171 Wn.2d at 175-76.
Our Martinez odd ruling should be discounted because of its misreading of State v.
Sandoval and because the ruling allows the defendant to show prejudice without any
evidence. One court has held that prejudice may not be shown by the defendant's self-
serving statements alone and requires some corroborating evidence. State v. Gallegos-
Delgado, 2017-NMCA-031, 392 P.3d 200,207.
In Ex Parte Torres, 483 S.W.3d 35 (Tex. Crim. App. 2016), the appellate court
held that plea counsel performed ineffectively when advising Manuel Torres about
immigration consequences of his plea. Nevertheless, the court denied Torres relief
because of a lack of showing of prejudice. Torres never testified in his sworn affidavit
that, had he known of the full immigration consequences of the plea, he would have
opted for trial. The record also lacked any mention that Torres could have gained a better
plea agreement by rejecting the plea offer that he accepted. Torres' rejection of his plea
counsel's advice to seek input from an immigration lawyer suggested that Torres was
21
No. 35147-5-III; No. 35604-3-III
State v. Valdovinos Vazquez; P RP of Valdovinos Vazquez - concurring
more concerned about getting out of jail than deportation. Finally, the record lacked any
basis for a defense to the charges.
I need not decide what, if any, additional facts Victor Valdovinos Vazquez must
demonstrate, in order to show prejudice. Valdovinos Vazquez argues that he would not
have agreed to the plea but for his trial counsel's deficient perfonnance and thus was
prejudiced. But he does not support this assertion with facts. In his declaration,
Valdovinos Vazquez claims that he made a mistake when pleading guilty to
methamphetamine possession. But that claim says nothing about whether he would have
withheld the plea of guilty on September 6, 2016, had he been properly advised. He may
just have remorse for electing to proceed with the entry of the plea. Valdovinos Vazquez
does not aver in his declaration that he would not have entered the plea agreement.
The surrounding facts show that Victor Valdovinos Vazquez probably would have
entered the plea even if plea counsel accurately advised him of immigration law. On the
one hand, Valdovinos Vazquez's family had hired immigration counsel for him, evidence
that Valdovinos Vazquez, or at least his family, held concern over immigration
consequences. Nevertheless, Valdovinos Vazquez posits no defense to the drug charges
and does not disclose his chance of prevailing at trial. He received a good deal from the
State. Despite being advised to delay the plea in order to gain input from his immigration
counsel, he proceeded to plead guilty. His plea counsel warned him the plea could have
22
No. 35147-5-III; No. 35604-3-III
State v. Valdovinos Vazquez; PRP of Valdovinos Vazquez - concurring
immigration consequences. No facts indicate the State would have withdrawn the
beneficial offer if Valdovinos Vazquez postponed his decision to plea.
Victor Valdovinos Vazquez did not assert any special circumstances with regard
to a need to remain in the United States. He does not claim to have a wife or children in
the United States.
23